The following persons have some similarity in their lives, do you know ?

John Denver – American singer

Martin Luther King Jr. – American human rights activist

Roman Tam – Hong Kong singer

Answer : They all have no wills when they passed away.

Some people argue that we have the Intestates’ Estates Ordinance, Cap. 73, which dictates the distribution of the estates of the persons who leave behind the estates to their surviving parents, siblings, spouse and children without making a will. In PRC, there is similar law which regulates the intestates’ estates. There is no need to have a will.

We should understand that law is not tailor made to suit individual’s needs. Each individual has his own profile of properties in the estate, unique personal needs and family needs. Besides, the aspirations of the deceased’s family members vary from case to case. The priority of rights in the distribution of estates stated in the law is to reduce arguments by a preset priority. At the end, we should ask ourselves if the law can completely satisfy our own needs.

The existence of a will may not preclude the beneficiaries from entering into litigation on the distribution of estates. But the chance of such situation can be much reduced.

Litigation is expensive and leads to much smaller share of estate after the legal proceedings whose costs may be paid by the estate. Also litigation is time consuming and hurts the relationship among the siblings, spouse, parents and all other persons being involved. Exposure to media on the details of the case is another factor to be considered before initiating legal proceedings.

A will can serve the purpose of estate planning which can be supplemented by forming a trust or other financial tools.

Will should be signed by the testator.

Signature of testator

A will may be signed by the testator with his name, initials or mark.

Incomplete signature

A signature left incomplete owing to weakness has been accepted.

Signature with a dry pen

Re-execution by the testator going over his signature with a dry pen has been held to be sufficient if in the presence of two witnesses who then attested the re-execution.

Signature in foreign characters

If the signature is in foreign characters, evidence is required that the deceased signed his name in the (Greek) characters, and as to the testator’s knowledge of the contents of the will.

Signature by mark

The testator’s mark, whether accompanied by his name or not, is sufficient as a signature.

The mark may be made with a pen or with some other instrument. A mark made with a stamp, engraved with the testator’s name or with a seal engraved with his initials has been held to be a good execution.

A thumb-print mark has been accepted.

Position of signature

There is no requirement as to the position of the testator’s signature. In practice, it is at the foot or end of the will.

Note 1 : RR D’Costa, JI Winegarten, T Synak, “Tristram And Coote’s Probate Practice”, 30 ed, Butterworth, 2006, page 65-67.

The validity of will is governed by the provisions in Wills Ordinance, Cap.30.

Section 4 states the age :

No will made by a person who has not attained full age shall be valid. Full age means 18 years of age.

Section 5 states signing and witnessing of a will :

No will shall be valid unless :-

(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction;

(b) it appears that the testator intended by his signature to give effect to the will;

(c) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time; and

(d) each witness either-

(i) attests and signs the will; or

(ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.

Section 13 states modes of revocation of will :-

(1) No will or part of a will shall be revoked otherwise than-

(a) by marriage ;

(b) by another valid will;

(c) by a written revocation executed in a manner in which the testator could validly execute a will; or

(d) by the burning, tearing or otherwise destroying of it by the testator, or by some person in his presence and by his direction, with the intention of revoking it.

(2) No will shall be revoked by any presumption of an intention on the ground of an alternation in circumstances.

 Section 14 states will to be revoked by marriage, except in certain cases.

Sometimes, there will be two or more wills, consistent or inconsistent with each other. It is up to the court to decide on the intention of the testator and make judgment on the validity of each will.